adv. possession question re. statute of limitations

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dudnaito
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adv. possession question re. statute of limitations

Postby dudnaito » Tue Dec 07, 2010 7:15 am

If true owner was nowhere to be found, and adverse possessor used the land throughout the entire statute of limitations, and TO then sold the land to a 3rd party. What rights do a 3rd party have if any?

Melkaba
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Re: adv. possession question re. statute of limitations

Postby Melkaba » Tue Dec 07, 2010 12:41 pm

I'll attempt to take a stab at this. While the statute of limitations usually runs when the injured party obtains notice (usually to prevent people from using adverse possession for underground stuff when the owner had no notice), if the owner was truly nowhere to be found (as in, not merely taking some kind of prolonged vacation or is using the land infrequently, I mean drop-of-the-face-of-the-earth gone), then there's really not much to do about that. If he did come back now and then, the statute of limitations would run at the point where he had notice. If TO did not do anything about it at this point, the adverse possessor gets the land/and/or files a quiet title action to make sure (in which the court would most likely see that the adverse possession ran through) and it legitimately becomes the possessor's land and the 3rd party couldn't do too much.
Last edited by Melkaba on Tue Dec 07, 2010 12:48 pm, edited 1 time in total.

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Kilpatrick
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Re: adv. possession question re. statute of limitations

Postby Kilpatrick » Tue Dec 07, 2010 12:45 pm

If the sale was after the adverse possessor had already satisfied the length of time requirement (assuming he met all the other elements) then the land belongs to the adverse possessor and the TO has made an invalid transfer to the third party. The third party can get their money back from the TO but they don't have any rights against the adverse possessor.

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kalvano
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Re: adv. possession question re. statute of limitations

Postby kalvano » Tue Dec 07, 2010 1:16 pm

Melkaba wrote:While the statute of limitations usually runs when the injured party obtains notice



I don't think that is correct. Adverse possession must be open and visible so the true owner can get notice, but they don't actually have to be notified.

Melkaba
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Re: adv. possession question re. statute of limitations

Postby Melkaba » Tue Dec 07, 2010 1:31 pm

kalvano wrote:I don't think that is correct. Adverse possession must be open and visible so the true owner can get notice, but they don't actually have to be notified.


Saying "obtain" might have been misleading on my part, but when I mean notice, I mean both actual and constructive (more in the tort sense). Yeah, there is no need to directly and explicitly notify the injured party, but it comes down to whether he had notice or should have had notice if it is open and notorious. And in the case of Marengo Cave, the statute of limitations didn't run because the injured party had no reasonable way of knowing/no constructive notice that the the other party was trying to adversely possess caves under his land.
Last edited by Melkaba on Tue Dec 07, 2010 1:33 pm, edited 1 time in total.

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Borhas
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Re: adv. possession question re. statute of limitations

Postby Borhas » Tue Dec 07, 2010 1:33 pm

misread OP... nvm
Last edited by Borhas on Sat Dec 11, 2010 6:42 pm, edited 1 time in total.

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ggocat
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Re: adv. possession question re. statute of limitations

Postby ggocat » Tue Dec 07, 2010 2:20 pm

I think this depends on the state. At least some courts hold that the purchaser is charged with constructive knowledge of the seller--i.e., the purchaser is on notice because the adverse possession is open and notorious at the time of the sale, and it is the purchaser's duty to inquire.

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blurbz
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Re: adv. possession question re. statute of limitations

Postby blurbz » Sat Dec 11, 2010 1:55 am

Kilpatrick wrote:If the sale was after the adverse possessor had already satisfied the length of time requirement (assuming he met all the other elements) then the land belongs to the adverse possessor and the TO has made an invalid transfer to the third party. The third party can get their money back from the TO but they don't have any rights against the adverse possessor.



This is correct. /thread.

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JusticeHarlan
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Re: adv. possession question re. statute of limitations

Postby JusticeHarlan » Sat Dec 11, 2010 9:40 am

Kilpatrick wrote:If the sale was after the adverse possessor had already satisfied the length of time requirement (assuming he met all the other elements) then the land belongs to the adverse possessor and the TO has made an invalid transfer to the third party. The third party can get their money back from the TO but they don't have any rights against the adverse possessor.

Question about that last sentence: won't this depend on the warranty on the deed the third party received from the true owner (perhaps should be called the record title holder)? If the true owner quitclaimed the property to the third party, he doesn't really have recourse against the seller, no?

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SeymourShowz
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Re: adv. possession question re. statute of limitations

Postby SeymourShowz » Sat Dec 11, 2010 10:11 am

Borhas wrote:
dudnaito wrote:If true owner was nowhere to be found, and adverse possessor used the land throughout the entire statute of limitations, and TO then sold the land to a 3rd party. What rights do a 3rd party have if any?


3rd party gets color of title and adverse possession through tacking doctrine and probably is true owner now

open and notorious doesn't require the True Owner to be aware, instead that the True Owner should be aware


No. Tacking would only occur if the adverse possessor sold or gifted the land to the third party. Color of title is not an issue here.

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Kilpatrick
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Re: adv. possession question re. statute of limitations

Postby Kilpatrick » Sat Dec 11, 2010 3:45 pm

JusticeHarlan wrote:
Kilpatrick wrote:If the sale was after the adverse possessor had already satisfied the length of time requirement (assuming he met all the other elements) then the land belongs to the adverse possessor and the TO has made an invalid transfer to the third party. The third party can get their money back from the TO but they don't have any rights against the adverse possessor.

Question about that last sentence: won't this depend on the warranty on the deed the third party received from the true owner (perhaps should be called the record title holder)? If the true owner quitclaimed the property to the third party, he doesn't really have recourse against the seller, no?


Yeah that's true. Bottom line - third party is screwed

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JCougar
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Re: adv. possession question re. statute of limitations

Postby JCougar » Sat Dec 11, 2010 6:40 pm

Kilpatrick wrote:If the sale was after the adverse possessor had already satisfied the length of time requirement (assuming he met all the other elements) then the land belongs to the adverse possessor and the TO has made an invalid transfer to the third party. The third party can get their money back from the TO but they don't have any rights against the adverse possessor.


This.

Tacking doesn't apply at all, because the SOL has already been satisfied, and the land belongs to the adverse posessor. Tacking only applies if you're trying to patch together multiple time periods of claims to the land that has been transferred with privity so that, when strung together, the claims to the land add up to the SOL.

The TO never has to receive actual notice. He could be on an important mission to Mars without radio communication for all the courts care. The fact that he's left his land untended is reason enough to let the party making productive economic use of it claim title to it.

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DoubleChecks
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Re: adv. possession question re. statute of limitations

Postby DoubleChecks » Sat Dec 11, 2010 6:45 pm

after the SoL is up (assuming he satisfied all AP requirements), shouldnt the adverse possessor sue for quiet title action? so he'd actually have a piece of paper to give to the 3rd party? sure he runs the risk of the true owner coming back and saying he was never notified of the quiet title claim, but iunno what that would actually do at that point since the AP is technically the owner now anyways

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JusticeHarlan
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Re: adv. possession question re. statute of limitations

Postby JusticeHarlan » Sun Dec 12, 2010 2:28 pm

DoubleChecks wrote:after the SoL is up (assuming he satisfied all AP requirements), shouldnt the adverse possessor sue for quiet title action? so he'd actually have a piece of paper to give to the 3rd party? sure he runs the risk of the true owner coming back and saying he was never notified of the quiet title claim, but iunno what that would actually do at that point since the AP is technically the owner now anyways

I don't think he needs to (though it might be a good idea to have a record title). He can just counter-claim the ejectment action with a claim for declarative judgment saying that he's now the true owner through adverse possession, no?




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